Avena and Article 60 Jurisdiction

by Roger Alford

One of the most interesting aspects of the ICJ’s recent order in Avena pertains to the Court’s finding of jurisdiction under Article 60 of the Statute. Mexico filed the case as a request for interpretation about the meaning of the Avena judgment because the United States withdrew from the Optional Protocol. Thus, the only way for the ICJ to have jurisdiction is to find a dispute between the parties as to interpretation. There is just one little problem: the United States indicated in its written briefs and oral presentations that it fully agrees with Mexico’s interpretation of the decision.

By a vote of seven to five, the ICJ ruled that there was a dispute as to interpretation and upheld its jurisdiction. Here is the key language from the majority:

55. Whereas the Court needs now to determine whether there appears to be a dispute between the Parties within the meaning of Article 60 of the Statute; whereas, according to the United States, its executive branch, which is the only authority entitled to represent the United States internationally, understands paragraph 153 (9) of the Avena Judgment as an obligation of result; whereas, in Mexico’s view, the fact that other federal and state authorities have not taken any steps to prevent the execution of Mexican nationals before they have received review and reconsideration of their convictions and sentences reflects a dispute over the meaning and scope of the Avena Judgment; whereas, while it seems both Parties regard paragraph 153 (9) of the Avena Judgment as an international obligation of result, the Parties nonetheless apparently hold different views as to the meaning and scope of that obligation of result, namely, whether that understanding is shared by all United States federal and state authorities and whether that obligation falls upon those authorities;

56. Whereas, in light of the positions taken by the Parties, there appears to be a difference of opinion between them as to the meaning and scope of the Court’s finding in paragraph 153 (9) of the operative part of the Judgment and thus recourse could be had to the Court under Article 60 of the Statute;

The five dissenting votes, including Judge Buergenthal of the United States, all concluded that there was no dispute between the parties as to the meaning and interpretation of the Avena judgment and therefore the Court lacked jurisdiction. As the summary of Judge Buergenthal’s dissent puts it:

According to Mexico, paragraph 153 (9) of the Judgment established an obligation of result, whereas it asserts that the United States believes that it only has an obligation as to means. The United States denies Mexico’s contention and agrees with Mexico that the paragraph in question imposes an obligation of result. In Judge Buergenthal’s view, Mexico has presented no evidence whatsoever to support its contention that the Parties are in a disagreement regarding the meaning or scope of that paragraph of the Avena Judgment. Here there is a claim by one of the Parties only regarding the existence of a dispute that is not supported by any relevant evidence before the Court.

I have not read the decisions carefully, but it does seem quite problematic for the ICJ to assert jurisdiction in this case. If the United States executive branch states that it fully agrees with the meaning and interpretation asserted by Mexico, on what basis can the Court assert that there is a dispute? If I understand the majority position, the only dispute is whether "federal and state authorities" outside the executive branch agree with the interpretation shared by Mexico and the United States executive branch. That seems to be a very thin reed on which to assert jurisdiction.

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